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E & J Gallo Winery v. Proximo Spirits

May 8, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Before the Court is Gallo‟s request to seal documents related to its motion for attorneys‟ fees. (Doc. 310). (Doc. 309) Proximo/Agavera lodged opposition to part of the request.*fn1

A motion to seal documents that are not part of the judicial record, such as "private materials unearthed during discovery," is governed by Federal Rule of Civil Procedure 26(c).

Pintos v. Pac. Creditors Ass‟n, 605 F.3d 665, 678 (9th Cir. Cal. 2010). Under Federal Rule of Civil Procedure 26(c), the Court may issue orders to "protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way."

To make the determination whether documents should be sealed, the Court must evaluate 2 whether ""good cause‟ exists to protect th[e] information from being disclosed to the public by 3 balancing the needs for discovery against the need for confidentiality.‟" Pintos, 605 F.3d at 678 4 (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). 5

Generally, documents filed in civil cases are presumed to be available to the public. EEOC v. Erection 6 Co., 900 F.2d 168, 170 (9th Cir. 1990); see also Kamakana v. City and County of Honolulu, 447 F.3d 7 1172, 1178 (9th Cir.2006); Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1134 (9th 8 Cir.2003). Documents may be sealed only when the compelling reasons for doing so outweigh the 9 public‟s right of access. EEOC at 170. To determine whether such documents should be sealed, the Court is to evaluate factors including, the "public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets." Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289, 1294 (9th Cir. 1986).

Gallo seeks an order sealing portions of its memorandum of points and authorities and portions of the declaration of Peter Harvey which were filed in support of its motion for fees. Gallo seeks to seal two categories of information. The first category includes information produced by Proximo/Agavera during discovery and which has been designated as "confidential -- attorney‟s eyes only." As to this information, the Court agrees that the information cited is confidential and is not publicly available, that it relates to the operation of privately-held corporations and disclosure of this information has a substantial likelihood of infringing on the corporations‟ competitive advantage. Thus, the request to seal this information is GRANTED.

The second category relates to the amounts billed by counsel to Gallo, how time was spent and associated information. In trademark/dress matters, attorney billing rates which are not publicly known and are "competitively sensitive" has been determined to warrant sealing. China Intl Travel Servs. (USA) v. China & Asia Travel Serv., 2008 U.S. Dist. LEXIS 106622 at *29 (N.D. Cal. Dec. 18, 2008); Mine O'Mine, Inc. v. Calmese, 2012 U.S. Dist. LEXIS 53077 at *10 (D. Nev. Apr. 16, 2012). Notably, however, Gallo makes little showing as to why the second category of information should be sealed except to describe it as "highly confidential." Gallo does not explain why disclosure of this information related to their San Francisco-based lawyers should be sealed but not as to their Fresno-2 based counsel. On the other hand, Gallo reports that the rates charged by their San Francisco-based 3 lawyers have been significantly modified for this case but Gallo provides no similar information for 4 their Fresno-based counsel. Indeed, review of the specific documents reveals that certain of the 5 information detail confidential billing rate information that, if became known, would likely impact the 6 law firm‟s competitiveness.*fn2 Finally, the Court is hard-pressed to see how the remaining information 7 is so sensitive as to preclude public review.*fn3 Therefore, Gallo‟s request to seal certain information is 8


Therefore, the Court ORDERS:

1. Gallo‟s request to seal is GRANTED IN PART and DENIED IN PART as follows:

a. As to the memorandum of points and authorities, the request for sealing is GRANTED IN PART. All of the requested information SHALL be sealed except the following SHALL NOT BE SEALED:

i. p. 9, the sentence starting at line 16 (after the sentence ending in " . . . award of attorneys‟ ...

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